South Carolina sues DOE over behind-schedule MOX facility in Aiken County

South Carolina Attorney General Alan Wilson said Feb. 9 that he filed a lawsuit that same day at the U.S. District Court for the District of South Carolina against the U.S. Department of Energy regarding the MOX facility in Aiken County, which is designed to recycle weapons-grade plutonium into power plant reactor fuel.

“Today, a lawsuit was filed in federal district court against the United States Department of Energy to require the federal government to obey the rule of law,” said Wilson. “In September 2015, we sent a letter to Secretary [Earnest] Moniz stating that we expected the Department of Energy to follow through with its promises, otherwise we would be seeking legal action. That letter was completely ignored.”   

Wilson added: “The Federal Government has a responsibility to follow through with its promises. The Department of Energy has continually shown disregard for its obligations under federal law to the nation, the State of South Carolina and frankly the rule of law. The federal government is not free to flout the law. This behavior will not be tolerated. We are committed to using every legal avenue possible to ensure compliance.

“We will continue to work with the Governor’s Office, our federal delegation in Washington and other state officials in a multi-pronged effort to protect South Carolinians.”

The Attorney General’s office has been working to protect the MOX facility for more than two years. In March 2014, the AG’s office took legal action against the federal government when President Barack Obama announced plans to halt construction on the site. But then an agreement was reached when DOE promised to continue funding the project through the end of the fiscal year.

Following that agreement, Wilson said the DOE has continued to seek ways to terminate the MOX project. This prompted a letter sent in September 2015 from the Attorney General’s Office to Secretary Moniz that stated this intent to bring legal action.

The Feb. 9 lawsuit would require the federal government to halt any further shipments of plutonium into South Carolina and provide the statutory economic and impact assistance to the state.

This matter arises out of action by DOE and the National Nuclear Security Administration (NNSA) that fails to comply with applicable law regarding the mixed oxide (MOX) fuel fabrication facility project under construction at the Savannah River Site (SRS) in Aiken County. Section 2566 of Title 50 of the United States Code (Section 2566) imposes procedural and substantive requirements on DOE and NNSA regarding the construction and production schedule for the MOX Facility and requires DOE and NNSA to undertake certain corrective action measures should the MOX production objectives not be met.

The MOX Facility is behind schedule by more than 12 months, the lawsuit said. Because the schedule is more than 12 months behind, the federal defendants must submit to Congress a corrective action “to be implemented by the Secretary to ensure that the MOX facility project is capable of meeting the MOX production objective” and to “include corrective actions to be implemented by the Secretary to ensure that the MOX production objective is met.” The defendants have failed to meet the MOX production objective to date and cannot meet the MOX production objective in 2016, the lawsuit said.

The MOX Facility will take surplus weapons-grade plutonium, remove impurities, and mix it with depleted uranium oxide to form MOX fuel pellets for reactor fuel assemblies that will be irradiated in commercial nuclear power reactors. With the end of the Cold War and the collapse of the Soviet Union, significant quantities of nuclear weapons, including large amounts of weapons grade plutonium, became surplus to the defense needs of the United States and Russia. Control of these surplus materials became an urgent U.S. foreign policy goal. Particular concern focused on plutonium from Soviet nuclear warheads, which the United States feared posed a major nuclear weapons proliferation risk.

DOE in the late 1990s concluded that the “Preferred Alternative” to handle this surplus material was a hybrid approach to immobilize a portion of the surplus weapons-grade plutonium in glass and ceramic materials and to irradiate the remaining plutonium in MOX fuel in existing domestic, commercial reactors. DOE selected SRS as the preferred site to implement both of these approaches. In 1999, DOE signed a contract with a consortium, now Shaw AREVA MOX Services LLC, to design, build, and operate the MOX Facility.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.